Unfair Dismissal under the Fair Work Act

Under the Rudd Government’s new Fair Work Act 2009 (Cth), a person is protected from being dismissed where the provisions of s 382 are met. Under that legislation, a worker who believes that they have been unfairly dismissed may make an application to Fair Work Australia.

A recent ruling of Fair Work Australia demonstrates a scenario as to just how wide the term can be pushed in terms of a breach of s 382.

In Harley v Aristocrat Technologies Australia Pty Ltd [2010] FWA 62, Mr Harley was held to have been constructively dismissed by his employer, Aristocrat Technologies (ATA), when he resigned as a result of a letter he received from them. In that letter, he was asked to explain why his employment should continue in light of his perceived poor sales record and numerous client complaints. Mr Harley, in his application to Fair Work Australia, alleged that the real reason he was required to resign was the inaction of ATA in relation to his complaints of harassment and bullying against the State Manager.

In its ruling, Fair Work Australia held that the inaction of ATA in relation to the complaints against the State Manager was a failure on ATA’s part to deal fairly with its employees, namely Mr Harley.

From this ruling, it appears that Fair Work Australia is willing to find breaches of s 382 where employment is terminated where there is a failure of the employer to deal fairly with its employee’s.

If you would like to read the ruling of Fair Work Australia in Harley, it can be found here.

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